CONTRA Randy Barnett and the Presumption of Liberty

So it’s hardly surprising that you’d find in Yuval’s journal a sensible and rigorous criticism of “the presumption of liberty” theory of judicial review (by Joel Alicea). Here’s a taste:

Barnett’s presumption eliminates the need to demonstrate a conflict between the Constitution and a statute. By assuming that a statute that restricts freedom in any way is unconstitutional, this theory presumes that the judiciary has authority to strike that law down. The mere assertion of unconstitutionality is sufficient where the government has not shown “the necessity and propriety of any infringement on individual freedom.”

Where does the judiciary derive the power to strike down a law the unconstitutionality of which has not been proven? Perhaps Barnett would point to the Ninth and Fourteenth Amendments, arguing that they require judges to enforce unenumerated rights. But as Barnett concedes, even his interpretation of these amendments does not require the adoption of his presumption of unconstitutionality. The presumption is a jurisprudential test he created to implement the Ninth and Fourteenth Amendments, and judges could just as easily choose another test if they agreed with his interpretation of those amendments.

The Constitution does not authorize judges to strike down a law unless they believe the law is in conflict with the Constitution. Barnett’s presumption amounts to an unconstitutional power grab by the judiciary, permitting it to do what no other branch of the federal government may do: act without constitutional warrant. The presumption of unconstitutionality certainly keeps the political branches within limits, but it ignores the problem of keeping the judiciary itself within limits. If, as Barnett says, judges are the watchmen of our constitutional boundaries, who is watching the watchmen? Barnett’s theory abolishes a foundational limit on judicial power in order to limit majoritarian power. It trades one leviathan for another, less accountable one.

There’s a lot you could add, of course. The presumption is that the Court—being counter-majoritarian—would typically be more LIBERTARIAN than elected branches. That’s kind of true now. But it won’t always be. After all, the reigning elite or countermajoritian theory remains RAWLS. Not only that, it’s incredibly naive to believe that the judiciary—acting alone—could return us to some pre-New Deal world. The people (and I don’t mean the evildoing progressive elite here) clearly don’t want that.

It’s more likely that the Barnett “presumption” doctrine will only facilitate developments along the GRISWOLD line. In that area of law, conservatives, of course, would much rather have the people decide through their legislatures.

To attempt to COMPLICATE Carl’s view on liberty once more: From the point of view of the pure Lockeanism of BARNETT and COWEN, both LOCHNER and ROE were rightly decided. From their view, the authentically progressive view is to affirm developments on behalf of new births of liberty from both those strains of judicial activism. To think otherwise is to be less progressive than reactionary.